Succession Act rights and second marriages

Under the Succession Act 1965, a surviving spouse has a legal right share regardless of the contents of a will.  A spouse has a legal right share of one half of her deceased spouse's estate where there are no children.  Where there are children, this legal right share amounts to one third.  In the event of a spouse dying without a will which is known as intestate, the surviving spouse is entitled to inherit everything where there are no children.  Where there are children, the surviving spouse is entitled to two thirds of the estate and the children are entitled to one third which is divided equally between the deceased's children.

When a party re-marries, the matter of renouncing their succession rights should seriously be considered in circumstances where both parties have children from a previous relationship or marriage.  Clearly the issue of renouncing would not arise on a first marriage.  The succession rights can be renounced either prior to the second marriage in contemplation of the second marriage or at any time after the second marriage.

If a party to a second marriage fails to renounce their succession rights, a significant injustice can be done to the children of the deceased spouse.  

Example Michael is married to his first wife Emma and has four children.  His wife dies and he inherits a significant pension and a property which was held in joint names.  Michael subsequently re-marries Cathy who is divorced and has three children.  He sells the former family home and uses the proceeds and some of the insurance money to purchase a new property which he places in joint names.  Michael then dies.  The property, since it is in joint names, passes entirely to Cathy as sole surviving joint tenant. If Michael dies intestate, Cathy is entitled to two thirds of Michael's entire estate (excluding the property) and one one third passes to his children which is divided equally between the four of them.  If Michael dies having made a will, Cathy is entitled to a one half share of his entire estate excluding the house.  

As you will note from the above example, given the input of the assets by Michael on the death of his first wife, in the absence of the renunciation by Cathy of her succession rights to Michael's estate, his children have inherited a very small share of his estate.  Furthermore, after Cathy's death, unless she has left a bequest to Michael's children in her will, her estate will be distributed in accordance with her will or on intestacy, will pass entirely to her own children, the vast majority of which was provided to Cathy by Michael. 

Accordingly, it is most important on a second marraige that a conversation takes place between the spouses as to whether both parties should execute a mutual renunciation of succession rights in each other's estate.  Thought should also be considered whether there are any assets which either spouse wishes to specifically set aside for the benefit of their children which can also be dealt with by putting the property in joint names as joint tenants during their lifetime.  After the Renunciation is executed, both parties should make new wills providing for their children and for each other as they see fit.  By executing the renunciation of succession rights, this eliminates the automatic entitlement of the other spouse to two thirds of the entire estate where their spouse dies intestate (without a will) or one half where there is a will.  Also by making a will, there is no reason why each spouse cannot leave a significant portion or life interest in a property to a spouse whilst still providing for their children.

To ensure that children, including adult children and minor children are not deprived of their inheritances which their deceased parent would have wanted them to inherit and may not have received a gift during their lifetime on the basis that they would have a significant inheritance on their death,  but it was an oversight on their part to specifically address the issue, it is strongly advised that when parties enter into a second marriage, each spouse should consult with a solicitor and obtain appropriate estate planning advice which will provide proper security and peace of mind for each other and also their respective children.